Culph v. Phillips

| Ind. | Dec 3, 1861

Perkins, J.

In June, 1856, Elijah Culph, and Sarah his wife, mortgaged a piece of land in Jasper county, Indiana, to William, Moreland, to secure the payment of four notes, due at the times following, viz., one on April 1,1856; one on April 7, 1857; one on April 1, 1859; and one on April 1, 1860.

This suit was commenced in June, 1860. Moreland assigned one of the notes to Thompson, who assigned the same, by delivery, to Phillips and Webb, the plaintiffs. Culph and wife, the' mortgagors, Moreland, the mortgagee, and holder of a part of the secured notes, Thompson, the assignee, and equitable assignor, of one of the notes, are made defendants. Culph had not sold his equity of redemption; and, hence, no purchaser from him had any interest in the land. It was' not, therefore, necessary to aver in the complaint, that the mortgage had been recorded. It was good against the mortgagor, without having been recorded.

Payment, to the holder, of a sum of money exceeding legal interest, for a further extension of time upon a note past due, does not taint the note with usury. See the cases cited in Ind. Dig., § 2, p. 778. Rut the maker may, probably, have a credit for the amount, as a payment. We presume in favor £jie ju(jgment of a court of general jurisdiction, the record not showing the contrary, that the land, in a foreclosure suit, was situated within the jurisdiction of the Court.

John Guthrie, for the appellants. R. C. Gregory, for the appellee.

Godfrey v. Godfrey, ante, p. 6.

Where a note is given without relief from valuation laws, and secured by mortgage, and the complaint for' foreclosure prays for a foreclosure, sale, and other proper relief, a judgment of sale without relief may be rendered.

Per Curiam. — The judgment below is affirmed, with 2 per cent, damages and costs.